186 N.W. 823 | S.D. | 1922
Action to compel specific performance of contract to convey real estate. Eindings of fact, conclusions of law, and judgment were in favor of plaintiffs, and defendants appeal.
The contract provided that upon compliance with certain conditions therein named the defendants Elliott and Woods would convey to plaintiffs Russell and Lingren, or to such persons as they might designate in writing within 90 days from the date of the contract. Abstracts of title were to be furnished and title to 'be approved b¡y the purchaser. The complaint alleges a full compliance or offer to comply iby plaintiffs with all the provisions of the contract upon their part. Elliott and Woods answered separately. Among other defenses pleaded they each alleged that—
“By mutual agreement of the parties to said contract, it was abandoned, terminated, surrendered and satisfied.”
If this allegation is true, the judgment should be reversed, and the action dismissed.
The trial court found and the evidence shows that at the time plaintiffs gave notice that they intended to cany out the terms of the contract, and at all times since that date, they were ready, able, and willing to so carry out the terms thereof, and that the
In the following cases it is held that the insurance money paid on a policy of insurance taken out by the vendor belongs to him free of any trust in favor of the purchaser: Phinizy v. Guernsey, 111 Ga. 346, 36 S. E. 796, 50 L. R. A. 680, 78 Am. St. Rep. 207; Gilbert v. Port, 28 Ohio St. 276; King v. Preston, 11 La. Ann. 95; Rayner v. Preston, 18 Ch. D. (Eng.) 1; Edwards v. West, 7 Ch. D. (Eng.) 858,
It will be seen, however, upon an examination of these cases, that the decision is determined by the facts involved in each particular case rather than by any general principle. In White v. Gilman, 138 Cal. 375, 71 Pac. 436, the plaintiff under a contract to purchase a vacant lot went into possession and erected a dwelling house thereon. After the house was erected and was being
“As between the parties to a contract like this, the indemnity, when paid by the company, belongs to the one on whom the loss falls.”
And quoting from Gilbert v. Port, 28 Ohio St. 276, this court further said:
'A's between vendor and vendee, under a valid and subsisting contract for the sale of real estate, .covered by a policy of insurance, where a loss insured against occurs after the date of the contract and before conveyance, the true test for determining to whom the money recovered on the policy belongs, in the absence of stipulations governing, is to determine who was the owner, and which party actually sustained the loss.”
But the present case is distinguishable from both the two latter cases cited. In White v. Gilman, supra, there were no buildings on the lot when the contract was made, and the vendor secured the insurance at his own expense and without any understanding on the part of the vendee that he was to benefit thereby. In Brakhage v. Tracy, supra, there were no buildings on the lot when the contract was made, but the insurance was paid for- by
In this case the buildings that were destroyed were on the property -when the contract was made. What their value -was does not appear, but that is not material. They had an insurable value of at least $8,000, and it may be assumed that the buildings were a material inducement to plaintiff to enter into the contract to purchase. Defendants having contracted to sell the property with the buildings thereon, there certainly can be no hardship in requiring them to deliver the property in the condition it was at the time plaintiffs gave notice- of their intention to exercise their option to purchase, or, in case of the destruction of the buildings by fire, to credit them with the amount recovered for such loss. It is true, of course, as argued by defendants, that if they had had no insurance they would not have been liable for the loss of the buildings, but that is not material to the equities between the parties where there was insurance. In Williams v. Lilley, supra, the property under option was partly destroyed by fire. The vendor collected the insurance and repaired the loss. After the damage -was fully repaired he had remaining a balance of more than $8,000 that he had received from the insurance companies. Thereafter the vendee elected to exercise his option to purchase and claimed he was entitled.to a -credit for the amount of insurance money left over after repairing the building. In considering the rightful disposition of this sum of money the court say:
“To whom, by the principles of equity and good conscience, upon the exercise of the plaintiff’s option, does it belong? It appears to us that the principles of natural justice, the teachings of conscience, and the -rules of that reason which has been denominated the life of the law, and without which it should not now exist, demand that, -when a party 'holds property which another has a right to purchase from him- at a fixed sum, be should be faithful to the obligation which that right imposes -upon him, in its very spirit and essence; that he should not keep the idea of obligation out of sight whenever some chance occurrence renders it convenient and pecuniarily profitable for him to do so. We conclude, then, that if, in the case before us, the property, at the time .the plaintiff demanded the conveyance, had remained as it was after the fire, without reparation, while the money received*190 for insurance was unexpended and unpledged for repairs in the hands of the defendants, the plaintiff would have been entitled to receive such money as part and parcel of the property, which it would have been the duty of the defendants to convey to him. Being money, it, of course, amounts to the same thing to deduct it from the stipulated purchase price.”
Following this rule, which to us seems to be just and equitable, and the rule declared by this court in Brakhage v. Tracy, supra, that the insurance money belongs “to him on whom falls the loss,” we hold that in this case, and under all the circumstances disclosed by the record, the plaintiffs are entitled to a credit on the purchase price of the property for the amount defendants have collected on the insurance.
The judgment and order appealed from are affirmed.